2021 ONSC 1855

Court File and Parties

Court File No.: FC-18-1380 Date: 20210311 Superior Court of Justice - Ontario

Re: Simcoe Muskoka Child, Youth and Family Services, (Applicant) And: J.K., (Respondent Mother) S.B. (Respondent Maternal Grandmother) W.K. (Respondent Father)

Before: Madam Justice R.S. Jain

Counsel: J. Hustins, Counsel, for the Applicant H. Dosanjh, Counsel from the Public Guardian & Trustee, for the Respondent Mother B. Grewal, Counsel, for the Respondent Father K. Bromley, Counsel for the Children, namely (AK and MK)

Heard: February 26, 2021

Endorsement

Introduction and Background

[1] The Simcoe Muskoka Child, Youth and Family Services (“the Society”) issued their Application in 2018. On consent, an interim supervision order was made on January 22, 2020. This order continues to this day. The children were residing with the respondent mother at the time of the hearing.

[2] On January 29, 2021 the Society brought a motion for summary judgment seeking the following orders: an order terminating the supervision order of Eberhard J. dated January 22, 2020; granting the Society leave to withdraw their Protection Application; and dismissing the parents Answers and Plans of Care. The respondent mother, the OCL, and the respondent maternal grandmother all consented to the relief sought by the Society.

[3] The respondent father did not consent. On that day, he requested an adjournment so that he could file responding affidavit materials. The court granted the request and adjourned the matter to be heard during the child protection trial sittings. The respondent father opposed the matter proceeding via summary judgment motion. He further opposed the Society’s request to withdraw their Protection Application and opposed an order dismissing the claims made in his Answer and Plan of Care.

[4] In his Answer and Plan of Care, the respondent father made a claim for access to the children. He asked for an order that access take place at his home. He further asked for an order regarding other incidents of access including: a specific access order to allow the children to have access with his extended family; an order for access transportation to be shared by the parties. He further requested an order placing the children into the custody of his mother SK (the children’s paternal grandmother) pursuant to sec. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 , or in the alternative, an order placing the children in the care of SK pursuant to a Supervision Order with access to the mother and maternal grandmother.

[5] The children are: AK born […], 2007 (14 years of age) and MK born […], 2005 (15 years of age). They are represented by the Office of the Children’s Lawyer Ms. K. Bromley, (whom also had the assistance of a clinical investigator Mr. J. Millward). The respondent maternal grandmother is SB and she was named as a party to this proceeding, (she had previously provided care for the children and she was the kin care provider for the children for period of time when the mother was hospitalized). She filed an affidavit and made submissions during the hearing. The paternal grandmother (SK) filed an affidavit in support of WK’s plan, however, she was never added as a party and did not appear. The Society worker is S. Shaw.

[6] The issue for the court is as follows:

1. Has the Society demonstrated a prima facie case that there is no genuine issue requiring trial with respect to an order: i. Terminating the interim consent order of Eberhard J. dated January 22, 2020; ii. Granting the Society leave to withdraw their Protection Application; iii. Dismissing the parents claims set out in their Answers and Plans of Care.

[7] I have read and relied upon the following materials filed:

1. Affidavit of Child Protection Worker (CPW) S. Shaw dated January 11, 2021;
2. Affidavit of CPW S. Shaw dated February 16, 2021;
3. Answer of the respondent mother, JK dated September 18, 2019;
4. Affidavit of respondent mother, JK dated February 10, 2021;
5. Affidavit of respondent mother, JK dated February 17, 2021;
6. Answer of the respondent father, WK dated November 14, 2018;
7. Affidavit of respondent father, WK dated November 14, 2018;
8. Affidavit of respondent father, WK dated February 11, 2021;
9. Affidavit of paternal grandmother, SK dated November 14, 2018;
10. Affidavit of clinical investigator, J. Millward dated December 14, 2020

Decision

[8] For reasons set out below, I have determined that there shall be an order granting the Society’s request for an order for summary judgment terminating the interim supervision order of Eberhard J. dated January 22, 2020; and granting the Society leave to withdraw their Protection Application. I am further making an order dismissing the mother and father’s claims as set out in their Answers and Plans of Care filed with the court.

Analysis

Summary Judgment

[9] Rule 16 (1) of the Family Law Rules, O. Reg. 114/99 allows the Society to bring a motion for summary judgment after the respondent/s have served an Answer and Plan of Care or after the time for serving an Answer and Plan of Care has expired. In this matter, the respondent parents both filed Answers and Plans of Care.

[10] The court should always exercise exceptional caution before proceeding on a summary judgment motion in a child protection case. I have considered this caution and found that it is in the interest of justice for the court to determine this case summarily. The summary judgment process allows the court to make the necessary findings of fact and to apply the law to the facts. It is a proportionate, more expeditious and less expensive means to achieve a just result. The summary judgment process allows the court to fairly and justly adjudicate this dispute. I find that I am able to do so based on the evidence before me, and without the need to use any expanded powers to weigh evidence or assess credibility. I find that the evidentiary record is sufficiently comprehensive on all aspects of the case for me to make a fair and just determination of the issues on the merits without the need for a further hearing or trial.

[11] The court must still ensure the best interests of the child/ren are adequately addressed on the available evidence. If the evidence does not raise a triable issue as to where the best interests lie, those best interests themselves call for a resolution without further delay associated with the trial and the resulting prolongation of the state of uncertainty about the children’s future. Catholic Children’s Aid Society of Toronto v. M. (L.), 2011 ONCJ 146, Sherr J. aff’d 2011 ONSC 4465, Czutrin J. In this matter there is clear evidence that the children’s best interests are adequately addressed by the disposition sought by the Society. As a part of this determination of the children’s best interests, the court heard clear and strong evidence of the children’s views and wishes pursuant to s. 74 (3) (a) of the CYFSA.

[12] This is a child protection proceeding. The Society is seeking an order that could effectively terminate their involvement with this family. As such, the core issue before the court is whether or not the children can be adequately protected without further intervention of the Society. I find that the material and undisputed facts of this case support this matter proceeding summarily.

[13] The material and undisputed facts in this matter and in the summary judgment process (1) allow the judge to make the necessary findings of fact, (2) allow the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result Hryniak v. Mauldin, 2014 SCC 7 at para. 49. As the Supreme Court stated, at para. 50 of Hryniak, “…the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.” Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316 at para. 63. I find, based on the evidence before me, that there is no genuine issue for trial and as such, the court must make a final order accordingly. I do not have discretion to do otherwise. The Children’s Aid Society of Toronto v. R.H. and M.N. [2000] court File No. 1974/98 at para 14.

[14] I find that the Society has established, on a balance of probabilities a prima facie case for summary judgment with respect to each aspect of the relief sought. I find there is no genuine issue requiring a trial on any issue. I find that if this matter proceeded to trial there is “no realistic possibility of an outcome other than that sought by the applicant”. After reviewing all the materials and hearing the submissions of counsel, I was confident that I could reach a fair and just determination of the merits of a summary judgment motion. I reach these conclusions for the reasons that follow.

Statutory Findings, Termination of Supervision Order, Withdrawal of Society Application & Dismissal of Claims

[15] The statutory findings pursuant to s. 90 (2) (a) (b) and (c) were made on consent at the beginning of the hearing. The children are not First Nations, Inuk or Metis. The children were in the care of their mother at the time of the hearing.

[16] The law is clear that in child protection proceedings, a society must seek leave to withdraw its application. Section 90(1) says:

CHILD PROTECTION HEARING - (1) Where an application is made under subsection 81 (1) or a matter is brought before the court to determine whether the child is in need of protection, the court shall hold a hearing to determine the issue and make an order under section 101.

[17] Section 90 (1) requires that the issue of whether the child involved in a protection application is in need of protection must be judicially determined in every application commenced under section 81 (1). The Family Law Rules r. 12 (1) does not apply to permit the withdrawal of a protection application.

[18] There are many factors that may be relevant to a determination that a withdrawal would be the appropriate disposition. These include: (a) whether the protection concerns continue to exist; (b) the nature of the protection concerns, i.e. their level of seriousness and/or degree of risk to the child; (c) the reasons for the withdrawal; (d) whether the child can be adequately protected without the intervention of the Society; (e) whether the parties consent to the withdrawal. It is important to note that the consent of the parties to a withdrawal is persuasive, but not determinative. If the court is satisfied that the children can be adequately protected without further intervention of the Society, the court may allow the Protection Application to be withdrawn even when there still may be grounds for a protection finding. Catholic Children’s Aid Society of Toronto v. B. (D.), 2002 O.J. No. 2318 (Ont. C.J.). See also Children’s Aid Society of London and Middlesex v. B. (C.G.C.), [2006] O.J. No. 614 (Ont. S.C.J.).

[19] In this matter, the material and undisputed facts include: the mother has an admitted and long history of mental health concerns; the mother has engaged with and cooperated with the Society and her mental health support team; the mother’s mental health has been stable for a long period of time; the mother and the Society have agreed to enter into a Voluntary Service Agreement (VSA) if the court grants the Society’s motion; there is a final CLRA order dated October 17, 2011 (prior to Society intervention) that granted the mother sole custody and the father supervised access to the children; despite this order, the children have not seen their father for approximately six years; the children are currently residing in the care of their mother.

[20] In addition to these undisputed facts, the court has the benefit of the strong, independent and consistent views and wishes of the children as expressed through their respective children’s lawyer Ms. Bromley. According to Ms. Bromley, the views and wishes of the children are as follows:

1. They wish to remain in the care of their mother JK.
2. They have not expressed concerns about their mother’s care.
3. They are distressed by the continued delays in resolving this matter on a final basis.
4. They confirm they have not seen their father or paternal grandmother in many years.
5. They do not wish to reestablish any regular access with their father at this time.
6. They do not wish to attend counselling or therapy to reconcile their differences with their father at this time.
7. They remain open to receiving letters and gifts and cards from their father.
8. They are confident that if they express a desire to see their father, their mother will support same.

[21] The court is cognizant that this matter was commenced in 2018 and almost three years have passed where the parties have been unable to resolve the issues on a final basis. While it is not appropriate to bypass a hearing just to ensure a speedy resolution, where the process is fair and the evidence available, the best interests of the child and their particular needs should not be discounted. Catholic Children’s Aid Society of Hamilton v. W. (B.), 2015 ONSC 7621, para 87. I find that the children’s views and wishes are strong, consistent and independent and I have given them a great deal of weight considering their ages and maturity.

[22] The mere continued existence of a parent’s mental health concerns alone is not enough to establish that the children are in need of protection. The respondent mother has been diagnosed with depression, post-traumatic stress disorder and borderline personality disorder. The Society’s concerns about the mother’s mental health may continue to exist, however, in order for the court to make a finding that the children are in need of protection, the court must examine the nature of the mental health concerns that remain unresolved and their level of seriousness and/or the degree of risk they may pose to the children.

[23] In this case, it is the courts view that the Society and the mother have built a level of trust and cooperation that allows the Society to promote the mother’s return to good mental health by way of a VSA. The mother has historically reached out for help and cooperated with the Society and her mental health team. The mother has agreed to continue to cooperate with the Society and her mental health team. She has further agreed to continue to share information relevant to her mental health with the Society. By entering a VSA with the mother, the Society can continue their involvement in a less intrusive manner.

[24] The goal of this court is to return the children to the care of their mother if it is safe to do so and if doing so does not place the children at risk of harm. In my view, there is sufficient evidence to do so. The respondent mother has shown that she is committed to both caring for the best interests of the children, and her own mental health. In her submissions, Ms. Dosanjh spoke about the progress and insight that the mother has shown with her outpatient care team and counselling. She further confirmed that there are no issues of safety or lack of care for the children. Lastly, the mother has been stable and she has the support of her mother and her care team, so there is a safety plan in place (if needed).

[25] It is the view of this court that a parent who suffers a temporary mental health breakdown, should not be treated any differently than a parent who suffers a temporary physical health breakdown or injury. In my view, a parent who suffers a mental health breakdown does not pose a risk to the children if: the health breakdown is temporary, and/or if the health breakdown is permanent, the concerns are being appropriately addressed; the parent is able to resume care of their child safely; and, there is a safety plan in place.

[26] I find that the nature of the protection concerns do not pose a risk of harm that requires further intervention of the court. The children were not placed in the care of the Society when the mother was hospitalized. The maternal grandmother was able to provide care and continues to be able to do so if the need arises. The maternal grandmother confirmed that she is and always will be a support for the respondent mother and the children.

[27] The court needs to be satisfied that in this situation, there is cooperation that exists between the Society and the parent/s. I am satisfied that the mother has and is cooperating with the Society. In her submissions and in her affidavits, the mother has agreed that she will enter a VSA with the Society. In my view, in these circumstances, I am satisfied that a VSA will be a sufficient plan that addresses the concerns in the best interests of the children and honours and respects the views and wishes of the children. I find the children can be adequately protected without further intervention of the Society.

[28] In his materials and submissions, the respondent father focused on the long history between the parents and the respondent father’s complaints about the respondent mother. The court found this unhelpful. The parents commenced cohabiting in approximately 2004 and were married for a short time from 2006 until 2008. They separated in 2008. A final order was made on consent under the CLRA on October 17, 2011 and contained terms that granted the mother final sole custody of the children and supervised access to the father. Despite all of the time that has passed and all the blame the respondent father heaped upon the respondent mother, he never brought a motion to reinstate or increase or change his access to the children in any way.

[29] The respondent father has supervised access to the children pursuant to the final order of October 17, 2011. Despite this, he has not exercised access with the children for many years (prior to the Society’s Application and the Society’s involvement with the family). Now, through the representation of Ms. Bromley, the children have clearly expressed that they do not wish to re-establish a relationship with their father at this time. It is frankly astonishing to the court that the father blames the mother for the position taken by the children. While I am sure that this is a sad and frustrating situation for the father, he does not seem to know or respect the views of his own children.

[30] The father admits that he never attended for access at the Supervised Access Centre. The father further admits that he historically asked the mother not to call him and not to send him pictures of the children (however the mother continued to send him pictures).

[31] In my view, the father’s lack of insight or understanding of the children does not prevent the court from honoring and respecting the children’s views and wishes that have been well expressed through Ms. Bromley, (and which have been corroborated by the Society and the mother). Rule 16 (4.1) provides that the responding party to a summary judgment motion may not rest on mere allegations or denials, but shall set out in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. I find that the respondent father has not provided sufficient evidence of specific facts showing that there is a genuine issue for trial. He cannot rest on mere denials or project all blame, he must put his best foot forward. The Children’s Aid Society of the Niagara Region v. G. (A.E.L.), 2015 ONSC 1514, para 35. In my view, the respondent father is mis-using the Society’s Protection Application as a forum to re-establish access with the children.

[32] In my view, the father’s complaints about his lack of access to the children are not relevant to the issues before the court. The Society, OCL and the mother have all made submissions that if the father truly seeks to vary his access with the children, he must bring a Motion to Change the final order of October 17, 2011. I agree.

[33] The children should not have to wait any longer and continue to suffer ongoing uncertainty. They need some finality in this matter. I find that the resolution of this matter by way of summary judgment motion is not merely efficient and expeditious – but it is a desirable and necessary mechanism to achieve the objectives of the CYFSA.

[34] For all the reasons set out above, final order to go as follows:

1. The children are found not to be in need of protection.
2. The interim consent order of Eberhard J. dated January 22, 2020 is terminated.
3. The Society may withdraw their Protection Application.
4. The respondent mother and respondent father’s claims as set out in their Answers and Plans of Care are dismissed.

Jain J. Date: March 11, 2021